Monday, 27 May 2013

By far one of the best decisions
I’ve made in my life is choosing to read Law at university. I understand there
is a tendency for people to think that their interests or professions are
somehow relevant to other topics, but I genuinely think that law can help people stop talking past each other. Tort law is essentially about bringing claims against people for
committing wrongs; it is the civil version of criminal law.

Causation

By far the most I’ve written
about on this blog has been about the causes of terrorism (and this should be last post on it in a very long time) – but everyone seems
to miss the definition of what causation means. Fortunately, the English and
common law courts have spent centuries talking about what constitutes a cause –
and I think they’ve got it right. If you bring a claim against someone in the
tort of negligence (for example), you need to establish not only that there was
a breach of duty (of acting in a non-negligent way) but also that the breach of
duty caused the loss you suffered. The
general test has been stated many times but here is a recent restatement from
Lord Phillips in Sienkiewicz v Greif
[2011] UKSC 10 at [16]

It is a basic
principle of the law of tort that the claimant will only have a cause of action
if he can prove, on balance of probabilities, that the defendant's tortious
conduct caused the damage in respect of which compensation is claimed. He must
show that, but for the defendant's tortious conduct he would not have suffered
the damage.

However, but for causation is not
appropriate as the only test: but for the
parents of the tortfeasor having sex and conceiving said tortfeasor, the tort
would not have occurred. Of course we would not say in any real sense that the
parents had caused the tort to occur.
A lot of people seem to think this is an absurd example, so I’ll give another:
a negligent driver speeds until he gets to a roundabout. He is then struck by lightning;
but for speeding, he would not have
been at the junction. This, again, is clearly not causally relevant. Hence, the
law superimposes a test that where there is an informed, deliberate and free
act, the chain of causation is broken (per Goff LJ in R v Pagget (1983) 76 Cr. App. R. 279 at 289). There are many cases
which show this principle in action, so I’ll only give a few of my favourite
criminal cases.

R v
Pagget: the defendant had taken his ex-girlfriend hostage using a
shotgun. The police were called to the scene where they were threatened and
fired upon. In the ensuing gun fight, triggered by the defendant, the police
shot the ex. It was held that the police were not responsible for the death of
the hostage because their action was not free.

Saunders
v Archer(1575) 75 E.R. 706:
the defendant was a husband and a father who poisoned an apple in the hopes
that his wife would eat it and die. The wife, without knowledge of the poisoning,
gave the apple to their daughter who died. It was held that the husband was
responsible for the death of the child because but for his act, the child would
not have died. The wife’s act was not a break in the chain of causation because
it was not informed action.

The reason English law does this is
because it values individualism and responsibility for one’s actions. To
suggest that someone else is responsible for an act you authored (i.e., you did it freely, deliberately and being
informed), is to significantly undermine free will and sense of control over
one’s life. Professor Simester (Legal
Theory, 1995) has explained this far better than I can hope to:

... if we so
weaken the relationship between the consequence [of an act] and its author by
indiscriminately sharing responsibility for the authorship of each consequence
that sense of our individuality as people in a specific relationship to the world
is much diluted

Simester is saying, in essence,
we express our autonomous lives by being connected with the choices that we
make. By separating out the connection between consequences and authorship
(either by holding me responsible for acts I have not authored or not holding
me responsible for acts I have committed), the ‘connection’ that makes real
autonomy and individual responsibility is gone. Hence, free, informed and
deliberate actions should be held to
be the work of only the individual involved.

Causation applied

So why is all of this relevant?
Because pundits who have spent so much time talking about ‘causes’ do not have
the wisdom of their Lordships in these cases. From Glenn Greenwald’s latest
column:

if Person X
walks up to Person Y on the street and spits in his face, and Person Y then
pulls out a gun and shoots Person X in the head and kills him in retaliation,
one can observe that Person X's spitting was a causal factor in Person Y's
behavior without remotely justifying Person Y's lethal violence.

This is not the position English
law takes and neither should it be the position of rational people. Lets ignore
that Greenwald is attempting to apply this analogy to terrorism (this is wrong
for three
reasons I have already gone through), and just focus on the example given.
Is Person Y’s action a free, informed and deliberate response? Yes, it is.
Causation is not simply about ‘but for’ or ‘and then...’ And the fact that this
individual has authored an action means he is the cause of his action. It is no
use talking of ‘provocation’ because we do not allow provocations to vitiate
causation (thankfully, since the Coroners and Justice Act (2009)).

Again, to make it painfully
obvious that this is the right approach, consider an individual who is murdered
after her partner finds out that she was having an affair. The action was free,
informed and deliberate. Thankfully, like terrorism, it is not a course of
action that people usually take (and thus reinforces the idea that these
actions are not caused by anything other than by the individual). That this is
the case was put poignantly by the Supreme Court of Alaska Hurn v Greenway 293 P.3d 480 (2013) (h/t The Volokh Conspiracy). Here
are the facts of the case:

Simone
Greenway and her friend Carrie Randall–Evans were dancing together in a
suggestive manner and teasing Jeffrey Evans, Carrie’s husband, when Jeffrey
left the room, returned with a pistol, and shot everyone inside, killing
Carrie. He then shot and killed himself. David Hurn, the father of Carrie’s two
minor children, sued, claiming that Greenway’s participation in the dance was
negligent either because it breached her duty as homeowner to control her
guests or because it created a foreseeable and unreasonable risk of violence.

But for the suggestive dancing, in this specific case,the murders of all the individuals
would not have occurred. Does that mean the dancing caused the murder? The
Supreme Court of Alaska held

We reject the
idea that victims are responsible for the violence they endure in the home, and
we will not blame them for their otherwise reasonable actions simply because
those actions foreseeably result in violence.

The same applies to racists and
terrorists; sure, a racists’ worldview means that but for the presence of the
black person, he would not have assaulted him, but his action was free, informed and deliberate and he is
the cause of that action. For the terrorist, granting that but for Western foreign policy he would not have
acted that way (which I don’t grant), it is still
not a cause of his actions. And unless we want to go around saying that the
colours of people’s skin, the choices people make about their sex lives, the
dances they happen to take part in are causes, we should resist Greenwald’s
wide definition of causation.

And what if we dilute the claim
that Greenwald makes – namely, that we should still listen to the racists and
terrorists so we know the reasons they give
for their actions? Absolutely not: it is irrelevant (and insulting) to start
talking about the role of a battered woman, the role of a victimised minority
or our foreign policy because it ignores that the action was caused by the
defendant’s own action. Talk about the worldview that these people accept
because, to arrogantly quote myself, ‘to be within the grounds of recruitment
requires an aversion (or openness to an aversion) to a free society of consent’
– and as the empirical evidence shows, it has nothing to do with the reasons
pundits like Greenwald give.

Responsibility for third parties

There is another reason why
causation is important; it also explains why, when human shields are used,
there is no responsibility attached to Western forces. But for the terrorists’ use of a certain area, it would not have
been targeted (assuming, for now, the action is proportionate). It is
unconvincing to argue that there was a free, informed and deliberate action
because the situation matches R v Pagget.
The IDF, acting in self-defence, targets an area from which a threat emerges
and if it kills civilians, the responsibility should like solely with Hamas. Of
course, states should take the presence of civilians into account when working
out what is ‘proportionate’ (in the same way that the police in Pagget should not have used a rocket
launcher to target the defendant) – but where they act proportionately, their
action is not free. I am not going to spend the rest of this post explaining
whether this was or was not the case in Israeli counter-terrorism operations
because I merely want to justify the principles I’m talking about.

Perhaps one of the most perverse
responses I’ve heard to statistics about coalition forces being responsible for
a tiny minority of civilian deaths is that the insurgents and terrorists who
cause the overwhelming majority of deaths would not have happened but for the
Western invasion. The argument is essentially saying that ‘you unleashed the
forces.’ That this is wrong should be clear (empirically, it is wrong to say
that it was cause; normatively, it is wrong to blame actions authored by
someone on an individual). But there are further cases which help elucidate why
such a view is incorrect.

Lord Hope made clear in Mitchell v Glasgow City Council [2009]
UKHL 11 at [15]that ‘the law does
not impose a duty to prevent a person from being harmed by the criminal act of
a third party based simply upon foreseeability.’ Accepting that it was
foreseeable that people would be attacked is not enough to impose an obligation
(this is partly for reasons give above about personal responsibility). Hence,
in Hill v Chief Constable of West
Yorkshire, there was no ‘general duty of care owed by the police to members
of the public at large to apprehend an unknown criminal.’ The coalition forces
in Iraq could have been responsible
for the actions of third parties if they
had control of them and negligently let them go. But because they did not, no
duty let alone causation can be applied if we are to respect personal
responsibility.

Saturday, 25 May 2013

I’ve spent many posts trying to
explain why I don’t think foreign policy is really relevant in discussing the
causes of terrorism. Without wishing to dwell on the point for too long,
because I have addressed it, the language that one uses in these kind of
discussions really tells you a lot. In essence, ‘explaining’ and ‘understanding’
terrorism amounts to excusing it. Glenn Greenwald in his most recent
Guardian article states:

Basic human
nature simply does not allow you to cheer on your government as it carries out
massive violence in multiple countries around the world and then have you be
completely immune from having that violence returned.

Human nature means that you are not free from people roaming your
streets and beheading people. Perhaps I’m being overzealous, you can still say
something human nature means x occurs (which, I’ll discuss below) and still say
its wrong. And then came this exchange, pointed out to me by a friend:

@sesmithesq Yes, the measure of how civilized someone is is how meekly they acquiesce to US aggression & how much gratitude they express

So not only is it human nature,
those who refuse to respond by beheading people and blowing people up on their
way to work are meek, acquiescent. If you do respond in such a way, there can
still be a measure of civility.
Anyone who wishes to see a clear example of excusing terrorism need look no
further than Greenwald’s words. But even
on the human nature point, Greenwald is flat out wrong. I’ve already shown many studies, polls and historical examples of why his position is untenable,
but I thought I’d beat a dead horse by giving one more major example from the
literature and then attacking the logic of the argument.

Iraq and the Surge

After the violence spiked in Iraq
in 2006, the U.S sent a ‘surge' of U.S personnel and there was a radical reduction in violence. I’ve changed my mind on the effectiveness of the
Surge three times – in fact you can even see it on some of the posts I’ve
written. In one
I describe the idea that the surge had a reducing effect on violence as a ‘frankly
propagandistic account’ because it did not take into account the Sunni cooperation
with the coalition and the U.S diplomatic effort in curtailing human capital
for Al Qaeda (hereafter, the ‘November account’). In another
I stated that the Surge ‘largely quelled violence’ in Iraq (hereafter, the ‘September
account’).

I changed my mind those times because I was
following the weight of the evidence. The evidence, I believe, has changed
again and so must my view. It should be noted, however, that if either one is
correct, Greenwald is wrong. If the Surge had no effect, the fact that violence
fell radically means foreign policy is mostly an irrelevance. If the Surge did
have effect, then foreign policy is relevant but in the opposite way that Greenwald and his friends claim. In quite
possibly the most comprehensive article on the Surge, Biddle, Friedman and Shapiro (2012, International Security put forward a new ‘synergistic’ model. They
explain (at p.10-11):

Without the
surge, the Anbar Awakening would probably not have spread fast or far enough.
And without the surge, sectarian violence would likely have continued for a
long time to come—the pattern and distribution of the bloodshed offers little
reason to believe that it had burned itself out by mid-2007... [However,] without
the Awakening to thin the insurgents’ ranks and unveil the holdouts to U.S.
troops, the violence would probably have remained very high until well after
the surge had been withdrawn and well after U.S. voters had lost patience with
the war.

The evidence they provide for
this position is incontrovertible: they utilise the declassified figuress of ‘significant
activities’ (essentially all military and insurgent activity in Iraq by
location, time and date), primary accounts of individuals involved and the Iraq
Body Count casualty figures. They then map out the differing explanations and
see if they match the pattern that was expected. The November account
emphasises the role of the Anbar Awakening (Sunnis agreeing to fight Al Qaeda).
Biddel et al explain that this is not the right view because between 2004-6,
the Sunnis did try to reach out to the U.S. Indeed, the U.S even made payments –
but each of these efforts failed because the Sunnis were not able to garner
protection, militarily, from the coalition which meant a relentless onslaught by Al Qaeda. And ‘without this protection [that
the Surge could provide], none of these efforts proved able to survive and
spread in the face of insurgent counterattacks’ (p.19).

This goes to show why the November
account cannot, by itself, explain the
decline in violence but this does not vindicate the September account. The Sons of Iraq (i.e., Sunnis who took part in the Anbar Awakening by joining with coalition forces) are
irrelevant to the September account; all that was important was American boots
on the ground. This would mean that before Sons of Iraq involvement, the Surge
should have worked to reduce the violence. Except thats not what we see in the
data; these are a random few data points from the study (at p.29):

Each graph charts the rate of
violence (y axis) over time (x axis) in different areas of operation. The
dotted line is when the Sons of Iraq began involvement in those provinces with
coalition forces. The data seems fairly clear: the Sons of Iraq did have an
impact. As Biddel et al note, ‘the average rate of reduction before SOI standup
was 2.5 percentage points per month; the rate after standup was 5.8 percentage
points per month, or roughly two and a half times greater’ (p.28).
(Incidentally, this is the kind of analysis that no blog can provide; simply
mapping figures of troop numbers and fatalities as Loonwatch
has done is the kind of crude ‘blog economics’ demeans rigorous academic study).

But importantly, the SOI
involvement was only made possible because of the Surge and the protection the
Sunnis obtained. Furthermore, their
involvement meant that the military
component could properly work because it reduced the combatants the U.S had to
fight and the Sons of Iraq could give them information on hideouts, positions
and the locality. Neither the September account nor the November account are
therefore sufficient, but both are necessary. This explains why much of the
academic literature shows robust results in favour of the September view. Here
are just two examples from my Twitter feed:

“The empirical
results show that troop levels and other policy changes associated with the
surge have a significant effect on reducing levels of civilian violence.” - ‘Relative peace in Iraq : a policy
evaluation of the surge in troop levels’ by Smith
(2009)

“Using new
panel data on development spending in Iraq, we show that violence reducing
effects of aid are greater when (a) projects are small, (b) troop strength is
high, and (c) professional development expertise is available.” - ‘Modest, Secure and Informed: Successful
Development in Conflict Zones’ by Berman
et al (2013)

There is no need to deny these
studies according to the synergistic model – they make complete
sense. But the empirical record must also take into account SOI stand up
points. Which brings me back to the point of this post: U.S involvement was a
significant part of the reduction in violence in Iraq. Again, this really
shouldn’t be surprising: the whole point of these actions is to deter and
reduce violence. There is no ‘blowback,’ the people of Iraq aren’t rushing to
kill us all: the opposite occurred. We increased troops and involvement – and the
Iraqis were better for it (in more ways
than just a reduction of violence). Perhaps Greenwald thinks that the Iraqis,
particularly the Sons of Iraq who experienced Al Qaeda’s brutal regime, are
meek and acquiescent?

The faulty logic of blowback

The logic of blowback appeals to
human intuitions: you’ve been hit, so why don’t you hit back? But there is no
way that those human intuitions can be applied to modern day terrorism. I have
already shown Palestinians (here), Pakistanis (here) and Iraqis (above) do not
respond by blowing people up nor supporting it – so it clearly is an
empirically false statement. But even the logic of it is faulty for
three reasons. Firstly, the bulk of these grievances are caused by the
terrorist groups themselves. I can’t be
bothered to write it out again, so here’s what I’ve previously written:

According to a
study by King’s College London looking at civilian deaths from 2003-2008
concludes that of the 92,000 civilians deaths recorded by Iraq Body Count, 12%
were attributable to coalition forces. 74% were carried out by “unknown
perpertrators” described as “are those who target civilians (i.e., no
identifiable military target is present), while appearing indistinguishable
from civilians.”... [In Afghanistan,] civilian deaths caused by pro-government
forces decreased by 24% from 2009-2010, making them responsible for 15% of
civilian casualties.

And yes, those numbers have
barely changed and are
still accurate in 2013. So why not attack the Taliban or Al Qaeda? Perhaps
this is what the Sons of Iraq did when they turned to the U.S - against Al Qaeda? I don’t think so.
As Loonwatch (without realising what this idea entails) helpfully reminds us:
the support for attacks against civilians is roughly
the same around the world (and if anything, lower in Muslim-majority
countries). It seems being a victim of terrorism, or a nation which is the
victim of terrorism has little to do with supporting or carrying out violence. In
fact, there are many examples (that I haven’t already mentioned) of individuals
feeling aggrieved and not becoming violent: families of homicide victims and
support for the death penalty (see research here and here); the Tibetans whose
rates of violence match their oppression (see a ridiculous attempt to make the opposing argument here); the black communities after the
reconstruction period etc. etc. Even if we step back – away from
terrorism – being anti-American is not related with foreign policy. In the
seminal The
Political Economy of Hatred, Glaeser (at p.46) rehteorically asks ‘why
would 34% of French but only 27% of Vietnamese have an unfavorable opinion of
the United States?’

Secondly, even if we just focused
on the minority of Western-linked grievances, terrorism involves attacking
innocent third parties. Even if you want to grant (which I don’t), that
individuals become violent when they become aggrieved – why would you attack
someone innocent? This is why the human intuition point should strongly be
countered: you do not attack an innocent civilian (be it man, woman or child)
because someone who you consider guilty attacked you. To be fair, there is a common
response: there is no other way for them
to respond. This is commonly given in the context of Israel – they have nothing
but rockets and suicide jackets and so they cannot target the military. Leaving
aside for the moment that there may be ways of attacking military targets, this
is still faulty. It is faulty for
terrorist groups because they make it their modus operandi to target
civilians. They have time to think about their best method and they choose terrorism. Why does this mean the
argument is faulty? Because the empirical record is emphatic that terrorism
does not work:

This graph is taken from a
lecture by Peter Neumann (at 5:32) and is
representative of the academic literature (Abrams
(2006), Harmon
(2011) and Neumann
(2008)). It might be said that this is an academic, not emotional/real
response – but that has already been shown to be a ridiculous argument by the
empirical record: the overwhelming majority of people can feel aggrieved, and
their emotional response is not one of terrorism. I noted how this is precisely
what happened after Operation Cast Lead in 2008-9 – and, surprise surprise, humans continue
to have morals after Operation Pillar of Defense in 2013.

Thirdly, the logic is flawed
because it will leave us paralyzed from doing good. The Woolwich terrorist said
that ‘I am fed up with people killing Muslims in Afghanistan’ (see the
first element above). I have already spelt out the benefits of liberation of
Afghanistan but I want to add two things. Why are these Islamist terrorist more
aggrieved than the local population? As Bergen
notes, ‘favorable views of the Taliban in polling across Afghanistan over the
past several years are consistently no more than 10 percent.’ Second, the
government we are working with to fight against these unpopular terrorists is a
democratically elected government which has the support of its people (75% of whom give the central government a positive assessment). We
needed to carry out the liberation of Afghanistan – not just for the
eradication of Al Qaeda’s training ground but the liberation of the Afghan
people. If (and as should be obvious
by now, this is only an if), there is a response from those who seek to
maintain these Talibanised states, then we should accept it and continue to fight against it.